re: #131 Unshaken Defiance

There are quite a few ifs between Clarence Thomas musings and settled law. Legislation, signing and lower court review to name the pertinent ones.

“Thomas is actually correct when he says that using rational basis is what SCOTUS does when they don’t want to take a constitutional right seriously.”

I just don’t understand this point. Not parsing right maybe.

There are several standards of review a court can use to determine if a law is constitutional or not. The easiest standard to meet is ‘rational basis’ — the government simply needs to show the law has some basis in reason or fact, and is not purely intended to be a constitutional violation.

The hardest standard to meet is ‘strict scrutiny’. Here the law will be unconstitutional if it infringes on the relevant constitutional right more than is absolutely necessary to meet some compelling objective.

Real lawyers would be more precise with the terminology, but the basic point stands. Gun control can survive under Heller + rational basis, and it cannot survive under Heller + strict scrutiny.